The Difference Between Separation & Legal Separation
Many clients file for divorce after believing they are legally separated
from their spouse since, many times, a separating couple will live apart
from each other before initiating legal action. However, legal separation
is not simply living apart from your spouse, nor is it a stepping stone
towards divorce. Instead, it is an option couples have for severing their
relationship through the courts.
Legal separation, like divorce, is a final resolution to a couples’
separation. In both legal separation and divorce, Colorado does not require
fault and, along with residential requirements, both require that the
marriage is irretrievably broken. While both enable the court to address
distribution of marital property, maintenance, parenting time, and child
support, both offer something the other does not.
Why People Decide to Legally Separate
People decide to legally separate rather than divorce for many reasons.
Some people are guided by religious beliefs while some are conflicted
by their personal feelings regarding divorce.
Where some couples may wish to push through the rough waters and continue
the relationship, hoping the storm will pass, other couples may be under
financial strain. When this is the case, couples may prefer legal separation
since debt and property acquired by the legally separated spouses stays
separate, as it would following a divorce. Alternatively, if the couple
merely lives apart from each other without completing legal action for
legal separation, debt and property acquired generally remains marital.
Other couples base their decision on medical and financial benefits only
available through their spouse’s employment. While a divorced spouse
loses their medical, dental, and other health coverage or insurance upon
final decree, a legally separated spouse typically retains the insurance
their spouse provides. Similarly, the Uniformed Services Spouse Protection
Act, for military benefits, and Social Security, for death benefits, require
a couple be married for at least ten years before the spouse is eligible
to receive any of their share of benefits. As such, legal separation suffices
for marriage with regard to these plans.
Legal Separation is Not a Divorce
However, a legally separated couple is not divorced. For purposes of marriage
in Colorado, parties to a legal separation cannot marry another person.
It is also possible for either spouse, during legal separation proceedings,
to request a divorce instead.
But it is important for couples hoping to separate to know that the process
for legal separation mirrors divorce. With the same 91 day wait period
required for divorce, there is no guarantee the process will be simpler
or faster. Separating couples should take the time to consider both options
when starting on the road to finalization.